a site about surrogates and the legality of surrogacy in the State of California!

The Surrogate Carries a Child or Children for Intended Parents

The idea behind surrogacy is that a carrier called a 'surrogate' gestates and births a child for another family - called the intended parents. 'Tradiditional' surrogates are biologically related to the child and 'gestational' surrogates' are not.

Intended Parents and their Rights

California recognizes the contractual rights of the intended parents. This contractual right is also solidified under an action brought under the Uniform Parentage Act which establishes the 'intended parents' as the parents of the child. This order gives the intended parents all rights to the child.

Surrogacy is Not Legal in Many Countries

Surrogacy is not legal in many countries. For that reason many intended parents enter surrogacy agreements in California with surrogates. A child born in this manner takes the nationality of the intended parents.

California as a Forum for Surrogacy

California is a modern haven for surrogacy because the law in this state supports a number of bases for parentage (maternity and paternity). A child born during a marriage is presumed to be the child of that marriage; a parent determined to be genetically related to a child may be adjudged the parent under the Uniform Parentage Act; a child conceived by a party by artificial insemination and treated or held out as their own, may be legally adjudged as a child of that person (Elisa B); and further, parties who contract with a surrogate, will generally be held by the courts in this state to be the child's parents. In this sense, the court upholds subjective contractual intent over genetics absent conflicting claims.

Creating New Life - What is Required?

Three things are needed to give birth to a child - an egg, a sperm cell, and a carrier of the fertilized egg who births the child. Some intended parents have none of the three and will need donors while some single parents (or two parent families) might have their own sperm cells or eggs available either in a preserved state or naturally. Depending on what is needed, different contracts are needed. Perhaps most significantly, at least an egg donation contract and/or surrogacy contract will be required. A well-written contact will deal with the rights of the intended parents to accompany the surrogate to medical appointments, the payment of health insurance for the surrogate, and the times and dates of delivery and surrender of the child to the intended parents. This is critical and establishes the key requisite for parentage.

Two or Possibly Three Mothers

When prospective parents use a sperm donor and the egg of the surrogate, the child is genetically related to the surrogate - she is in fact the egg donor and surrogate. In one case married parties arranged that a traditional surrogate carry a child. Neither party contributed sperm or an egg. Before the child was born, the father filed for divorce. He negated responsibility for the child saying that he was not the biological parent. The court held him to his original intention (Buzzanca). In cases where egg donors have sought custody of the child after birth - where children appear to have two or possibly three mothers - the donor, the surrogate and the intended parent, Courts in California have denied custody rights to the former and held that intent controls.

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The courts now uphold an intended parent's rights and an adoption is no longer necessary. Applying FC 7610, the courts have come to the conclusion that a person who consents to a medical procedure,which results in a pregnancy and eventual birth of a child, is the parent by virtue of that consent.

California recognizes a contractual intent as a basis for parentage. Before the Buzzanca case, the prospective parents ran some risk and typically needed to terminate the rights of the surrogate as part of a separate (nail biting) adoption proceeding under an earlier case (Moschetta).

In March 10, 1998, in Buzzanca v. Buzzanca, 72 Cal. Rptr.2d 280 (Cal. Ct. App. 1998), the California Court of Appeals for the Fourth District, Division 3, held that the intended parents of a child conceived from the egg and sperm of anonymous donors and carried to term by a surrogate are legally the parents of the child. As a result, the intended father would have to support the child in the event that he divorced the mother.

In 1999, in the case of Drewitt-Barlow v Bellamy, the same-sex couple from Essex UK who petitioned the Supreme Court of California for both their names to be assigned to their unborn twin babies’ birth certificates when they were born as Parent 1 and Parent 2, was won. This was a landmark case that paved the way for same-sex couples around the world to be named on their babies’ birth certificates.

Finally, in 2005 the California Supreme Court decided three companion cases that concerned lesbian couples who had reproduced via surrogacy, Elisa B. v. Superior Court, Kristine H. v. Lisa R. and K.M. v. E.G. The Court held that, under the Uniform Parentage Act, two women can be the legal parents of a child produced through surrogacy. This ruling presumably applies to all members of the LGBT community.

One of the most important advantages of performing surrogacy in California, is that it is possible to get a Pre-Birth Order which will establish you as the legal parents of any children born to your surrogate within a specified time period. The timeframe to obtain a judgment can take several months, mostly due to the court’s availability to review the documents and/or set the matter for hearing. To obtain the Pre-Birth Order, the paperwork would usually be filed with the court between the fourth and seventh month of your surrogate’s pregnancy. This is now seen as a very standard application and certainly not a hearing that you have to attend in person.

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